AMI 707A Borrowed Servant

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 707A

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 7. Agency—Employment—Partnership—Joint Enterprise—Imputed Liability

AMI 707A Borrowed Servant

One of the questions for you to decide is whether at the time of the occurrence (servant) was the employee of (general employer) or (third party employer).

One employer may loan an employee to another employer to perform a particular service. The employer who directs and controls the employee's performance of the service at the time of the occurrence is deemed to be the employer responsible for the employee's conduct.

NOTE ON USE

This instruction may be given only when there is an issue whether the employee was a borrowed servant.

A burden of proof instruction must be used in conjunction with this instruction. AMI 207 should be adapted where the plaintiff must prove that the employee was employed by the defendant at the time of the occurrence. AMI 209 should be adapted where the defendant admits employing the employee, but contends that the employee had been loaned to a third party. Thus:

(defendant) contends it loaned (employee) to (alleged third party employer) who is responsible for the conduct of the employee at the time of the occurrence. (defendant) has the burden of proving (employee) was employed by (third party employer) at the time of the occurrence.

AMI 208 may be adapted where it is undisputed that the defendant is responsible for the employee's actions at the time of the occurrence.

COMMENT

This instruction is based on the one given in Donahue v Cowdrey, 246 Ark. 1028, 1031, 440 S.W.2d 773, 774–75 (1969) and George's Inc. v. Otwell, 282 Ark. 152, 153, 666 S.W.2d 406, 407 (1984). In Otwell, the court stated that “the most significant question regarding a loaned employee is which company has direction and control.” 282 Ark. at 154, 666 S.W.2d at 407. See also McMullen v. Healthcare Staffing Associates, Inc., 2012 Ark. App. 617, at 6.

It is ordinarily a fact question as to whether the general or special employer had the right to control and thus was the employee's master; however, it becomes a matter of law where all of the evidence points in one direction and there is no rational basis for reasonable minds to differ. St. Joseph's Regional Health Center v. Munos, 326 Ark. 605, 613, 934 S.W.2d. 192, 196 (1996).

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